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Charging would-be litigants up front for the cost of a civil jury is unconstitutional and represents a barrier to civil justice, the Trial Lawyers Association of B.C. says in a lawsuit against the provincial government.

The sheriff’s levies are unaffordable not just by the indigent and needy, but also by large segments of the middle class, the group maintains.

“The right to Canadians to pursue or defend a civil claim before a civil jury enhances the achievement of justice, serves the public interest and is an essential aspect of the Canadian civil justice system,” the trial lawyers say.

The B.C. Supreme Court rules state a litigant must pay to the sheriff a sum sufficient to cover the costs for the jury and the jury process.

In a statement of claim filed with the court Tuesday, the lawyers say not only do the hefty fees deter anyone who isn’t wealthy, but also they have not been authorized by an order-in-council under the Jury Act or any other statute.

Instead of following the proper process, they say the sheriff simply issued a memo saying that effective July 1, 2013, litigants had to pay 45 days before their trial a deposit of $1,500, $1,000 of which was non-refundable; then they had to pay the sheriff further deposits — $800 daily for day two through 10 of trial, a deposit of $900 a day for the following 39 days and then a deposit of $1,200 a day for every trial day beyond.

Jurors receive $20 a day for each of the first 10 days of trial, $60 a day for the 11th to 49th days of the trial, and $100 for succeeding days.

The association was part of the winning side in October when the Supreme Court of Canada declared hearing fees imposed on litigants by the B.C. government were unconstitutional.

Chief Justice Beverley McLachlin said such charges imposed undue hardship on ordinary people and impeded their right to bring legitimate cases to court.

Back from participating in that battle about access to justice, Vancouver lawyer Darrell Roberts said the charges for an eight-person civil jury represent a similar hurdle and were part of the same government regime to make civil litigation pay for itself.

Roberts said most other provinces don’t impose the fees but he hadn’t finished collecting data on those that do.

“We don’t even have the number of civil jury trials that are being conducted in B.C.,” he said. “They’re way down; nobody can afford them, we know that. Anecdotally, when I talk to people, only ICBC is going for them. I can’t point to one civil jury trial going on right now. When I was a young counsel (in the 1960s), they were not uncommon.”

The jury charges and the hearing fees together were blamed by lawyers who abandoned lawsuits on behalf of survivors of the 2006 Queen of the North ferry sinking that left two dead.

Roberts said the sheriff turns up in the Supreme Court at the start of trial to collect the money.

“On day one, the sheriff stands there waiting for a cheque for the first 10 days of trial — $800 times nine, and if he doesn’t get it, you don’t get your jury,” Roberts said.

“Who the hell can afford to pay that? I’ve run the numbers and they’re awful.”

Although they do not exist in Quebec, whose civil legal system is based on the Napoleonic Code, civil juries have been an integral part of B.C.’s litigation process since the colony was created in 1858 — before confederation.

The philosophy of civil juries is that the courts should be able to explain the law to lay people and that respect of our civil justice system is enhanced when people know their dispute can be resolved by their peers.

They are considered an institutional check protecting citizen involvement so that the legal system doesn’t become the special preserve of the bench and bar.

“The civil justice system must be available for all. If it is not, that undermines our civil society,” Roberts added.

“We have to have the civil justice system available for everybody, not just corporations and the wealthy. That’s why the Supreme Court of Canada decision (on hearing fees) was so important. It sends a signal that the courts are available to everybody. This case is another step along that road.”

The government has 21 days to respond to the suit that seeks to have the fees declared illegal and the sheriff ordered to stop collecting them.

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